Grand River Dam Auth. v. Grand-Hydro

• Decision Date: 20 May 1947
• Docket Number: Case Number: 32399
• Parties: GRAND RIVER DAM AUTH. v. GRAND-HYDRO
• Court: Oklahoma Supreme Court

1947 OK 167

201 P.2d 225

200 Okla. 157

GRAND RIVER DAM AUTH. v. GRAND-HYDRO

Case Number: 32399

Supreme Court of Oklahoma

Decided: May 20, 1947

Syllabus

See 68 S.Ct. 263, 69 S.Ct. 114

¶0 1. APPEAL AND ERROR - Law of case - Decision on prior appeal.

Ordinarily, all questions open to dispute and either expressly or by necessary implication decided on appeal to this court will not be open for review on the second appeal, but such decision becomes the settled law of the case as to all such questions, and is not subject to re-examination.

2. EMINENT DOMAIN - Dam site value of land condemned was not destroyed by act creating Grand River Dam Authority.

The passage of the act creating the Grand River Dam Authority did not destroy the dam site value of land condemned, if properly an element to be considered in fixing the amount which condemnee is entitled to recover. Art. 4, ch. 7, S. L. 1935, 82 O. S. 1941 §§ 861-881.

3. SAME - Value of land taken for dam site not affected by fact condemnee had no license from Federal Power Commission to construct dam.

That condemnee had not applied for, nor secured, license from Federal Power Commission for construction of dam on non-navigable stream was not material in fixing value of land taken for dam site.

4. TRIAL - Argument to jury should not extend to questions of law determinable by court.

In jury trial, argument of counsel should be limited to those questions submitted to jury and should not extend to questions of law determinable by the court.

5. EMINENT DOMAIN - Allowance of interest on amount fixed by jury in excess of amount paid into court by condemnor.

Where, in a condemnation proceeding, the jury fixes the value of property taken as of the date of taking, interest from such date is allowable on balance not paid into court at that time by condemnor.

Appeal from District Court, Mayes County; N.B. Johnson, Judge.

Proceeding in condemnation by the Grand River Dam Authority against Grand-Hydro, a corporation. From judgment rendered upon verdict of jury, condemnor appeals. Affirmed.

Q.B. Boydstun and R.L. Davidson, both of Tulsa, for plaintiff in error.

Harve N. Langley and R.A. Wilkerson, both of Pryor, S.F. Fowler, of Knoxville, Tenn., and R.D. Hudson, of Tulsa, for defendant in error.

J. Edward Williams and Roger P. Marquis, both of Washington, D.C., U.S. Dept. of Justice, amicus curiae.

Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., amicus curiae.

DAVISON, V.C.J.

¶1 This is an appeal from a judgment rendered upon a jury verdict in an action in condemnation brought by the Grand River Dam Authority, herein referred to as the Authority, as plaintiff, against Grand-Hydro, as defendant.

¶2 After commissioners were appointed and had fixed the value of defendant's property, both parties demanded a jury trial, resulting in a verdict for defendant of $136,250. (On appeal to this court the cause was reversed and remanded. Grand-Hydro v. Grand River Dam Authority, 192 Okla. 693, 139 P.2d 798.)

¶3 The case was retried and judgment rendered upon the verdict of the jury, from which plaintiff brings the cause here on appeal. Briefs amicus curiae have been filed by the State of Oklahoma and by the United States.

¶4 There is little dispute about the facts. The Grand-Hydro is a private corporation organized in 1929 and incorporated for the purpose of generating and distributing electric power. It acquired title to numerous tracts of land along the Grand River, including that involved in this litigation, which consists of some 1,400 acres. Included in this acreage is one 417-acre tract known as the Pensacola site, which is the site of the dam later built by the Authority.

¶5 On August 29, 1931, after a proper application therefor was filed, the Conservation Commission of Oklahoma issued to Grand-Hydro a permit to appropriate to a beneficial use 4,000 cubic feet per second of the flow of Grand River and to construct one 50-foot storage and power dam and one 14-foot equalizing dam, pursuant to which extensive engineering investigations and surveys were made by the Grand-Hydro. As pointed out in our former opinion, this permit was in effect at the time of its assignment to the Authority.

¶6 In February, 1934, the city of Tulsa, after having obtained a permit to appropriate the waters of Spavinaw creek, a tributary of Grand river, filed suit in the district court of Mayes county to adjudicate the appropriated and unappropriated waters of both streams. In that suit the Grand-Hydro was made defendant along with several cities and towns.

¶7 The State Legislature in 1935 created the Grand River Dam Authority as a governmental corporate agency, to develop and sell water power and electric energy in the Grand River basin, and endowed it with the power of eminent domain.

¶8 After being made a party to the city of Tulsa suit and before filing answer, the Authority acquired, on January 10, 1938, by assignment and deed, all of the title and interest of the Grand-Hydro in a 45-mile tract of land and in the permit and license to appropriate the waters of Grand River to a beneficial use. The Authority then, on January 18, 1938, filed its answer and cross-petition, alleging among other things the assignment and the ownership by the Authority of all the interest of Grand-Hydro in the permit and license. About a month later judgment was rendered adjudging that the several municipalities had a prior right to divert and appropriate for municipal purposes very small amounts of the flow of Grand River and that the Authority had a prior right to the remainder of said flow.

¶9 In March, 1938, Grand-Hydro conveyed another 10 acres to the Authority and in July conveyed to it the right of entry on all lands at the Pensacola dam site and south thereof. The conveyances of the land were made on condition that the consideration would later be determined by agreement or condemnation and the assignment was on the condition provided for therein:

"It is understood, however, that this assignment and conveyance shall not, in any way, affect or impair the title of Grand-Hydro to any lands owned by it, or any interests therein, and if any lands or interest therein owned by the said Grand-Hydro are acquired by the Grand River Dam Authority by purchase or condemnation, the value thereof or damage thereto shall be ascertained as though this assignment and conveyance had never been made."

¶10 The parties being unable to agree on the value of the property, the Authority filed this action in condemnation February 17, 1939. It was stipulated by the parties that the taking date was January 19, 1940.

¶11 In July, 1939, after proper application by the Authority and after a finding that the construction proposed would affect interstate commerce because of its effect on the Arkansas River, the Federal Power Commission issued a license to the Authority to construct, maintain and operate the dam which it later built. The spillway was built on the 45-acre tract acquired by deed and the dam was built on adjacent land still owned by Grand-Hydro but covered by the right of entry. Grand-Hydro had no such federal license nor had it taken any steps toward procuring one.

¶12 In the second trial the witnesses, on behalf of the Grand-Hydro, testified that the 417-acre tract had a value of $750,000 to $1,000,000 for dam site purpose and the balance of the land had a value of $78,375 to $83,600. The Authority introduced no testimony as to the value of the land for dam site purposes but their witnesses testified the entire 1,400 acres had a value of $34,500 to $56,656.50.

¶13 The numerous assignments of error urged by appellant will be considered in the order presented, first and foremost being whether or not the former opinion of this court constitutes the law of the case on this appeal. The conclusions therein expressed were arrived at after extensive arguments by counsel, the filing of various petitions for rehearing and detailed consideration of every question presented. Many cases are cited by each party stating the rule of law:

". . . All questions open to dispute and either expressly or by necessary implication decided on appeal to this court will not be open for review on the second appeal, but such decision becomes the settled law of the case as to all such questions, and is not subject to re-examination." St. Louis & S. F. Ry. v. Hardy 45 Okla. 423, 146 P. 38.

And the exceptions to the rule:

". . . The courts uniformly hold that an appellate court may review and reverse its former decision in the same case where it is satisfied that gross or manifest injustice has been done by its former decision, or where the mischief to be cured far outweighs any injury that may be done in the particular case by overruling a prior decision." Wade v. Hope & Killingsworth, 89 Okla. 64, 213 P. 549.

¶14 Although a few courts hold that there is no exception to the general rule, we have consistently held that, if the facts of the particular case warrant, the exception should apply. But, as heretofore stated, the opinion on the first appeal was rendered only after exhaustive study and is the law of this case on all questions therein decided.

¶15 On the first appeal we held that the permit of the Grand-Hydro was not invalid ab initio, nor had it expired by its own terms, nor had it been abandoned, nor did the city of Tulsa case so hold.

¶16 The doctrine of "the law of the case" is not controlling "where the facts and issues are different in a subsequent appeal from what they were in the former appeal." Missouri, K. & T. Ry. Co. v. Tulsa, 113 Okla. 21, 238 P. 452 at 456. In this appeal the new or different facts and issues presented consist of the competency of the testimony, as presented in the last trial, of the expert witnesses as to the market value of the dam site; the submission of such testimony to the jury under proper instructions; the effect of Grand-Hydro's lack of a permit from the Federal Power Commission; the trial court's refusal to allow...